Assembly Bill A8644

                                BILL NUMBER:A8644

TITLE  OF  BILL:    An act to amend the civil practice law and rules, in
relation to limited liability of persons jointly liable

PURPOSE OR GENERAL IDEA OF BILL: To provide that limited  liability  for
persons  held  jointly liable shall not apply to parties held liable for
failing to provide reasonable security

SUMMARY OF SPECIFIC PROVISIONS: Section one amends section 1602  of  the
civil practice law and rules by adding a new subdivision (14) to provide
that  limitations on liability will not apply to any parties held liable
for failing to provide reasonable security or  for  failing  to  provide
security required by federal, state or local laws, rules or regulations.

Section  two provides the effective date and that the law shall apply to
causes of action commenced or pending on or after such date.

JUSTIFICATION: Where a tenant is raped by an intruder who gained  access
to  the  tenant's  building through a defect in the building's security,
New York is among a small number of states that asks a jury to apportion
liability between the rapist and the negligent landlord  who  failed  to
keep the building secure. This leads to an unintended and bizarre result
when  the victim attempts to recover damages from the negligent landlord
for the personal injury suffered at the hands of the rapist.

              

Under current law, if the negligent landlord is found to be 50% or  less
liable for the injury, the landlord's liability is limited to his "equi-
table share" based on the "relative culpability" of each person contrib-
uting to the total liability. The only time this limitation on liability
of  the landlord is not imposed is when the other person contributing to
the liability, i.e. the rapist, cannot be found.

Accordingly, in the case of the raped tenant, a jury  will  likely  find
the  rapist  to  be  more than 50%, if not 100%, liable for the victim's
injury, freeing the landlord from liability, even  though  the  landlord
failed to maintain adequate security at the time of the assault.

There  is  another curious consequence that results from the application
of this limitation on liability. Current law provides that  the  limita-
tion  on liability is not applied where the other person responsible for
the victim's injury cannot be found. So in the case of the raped tenant,
if the rapist cannot be found, the limitation on liability of the  land-
lord will not be imposed and the victim may be able to recover fully for
damages against the landlord for his failing to provide reasonable secu-
rity. If, on the other hand, the rapist is found, the victim will likely
recover  little,  if any, damages from the landlord since the limitation
of liability will be applied based on the landlord's "relative culpabil-
ity." The landlord's relative culpability will likely be  deemed  to  be
small  as  compared  to  the rapist's culpability, and almost all of the
liability imposed on the rapist. One may surmise that the odds of recov-
ering damages from the rapist are slim.

Current law, then, forces the victim to choose between cooperating  with
law  enforcement  to  find her attacker and bring him to justice and not
seeking to identify her assailant so that she can recover  damages  100%
from the landlord in her personal injury action.

Prior  to  2002,  New  York courts generally held that the law requiring
apportionment of liability did not  apply  to  personal  injury  actions
involving  a negligent actor (i.e. a landlord) and an intentional wrong-
doer (i.e. a criminal who commits assault). Yet the Court of Appeals  in
2002 required allocation of liability, noting that the legislature would
need  to modify the law to clarify its intent regarding apportionment in
these types of cases.

This bill will make clear that allocation of liability will not apply to
a party held liable for failing to provide reasonable  security  or  for
failing  to  provide  security  as  required by federal, state and local
laws.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATION: None.

EFFECTIVE DATE: This act shall take effect immediately.